BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 122 HEARING DATE: April 28, 2009
AUTHOR: Pavley URGENCY: No
VERSION: April 15, 2009 CONSULTANT: Dennis O'Connor
DUAL REFERRAL: No FISCAL:Yes
SUBJECT: Groundwater.
BACKGROUND AND EXISTING LAW
California does not have any statewide laws governing
groundwater supplies. However:
The State Does Have Statewide Laws Governing Groundwater
Quality . In particular, the Porter Cologne Act, among other
things, directs the State Water Resources Control Board
(SWRCB) and the Regional Water Quality Control Boards to
promulgate and enforce statewide regulations governing
groundwater quality.
The State Does Have Laws Governing Groundwater Supplies In
Some Parts Of The State . For example, in the counties of
Riverside, San Bernardino, Los Angeles, and Ventura, current
law requires any person who extracts groundwater in excess of
25 acre-feet in any year to file an annual notice of
extraction with the SWRCB. This requirement, with certain
exceptions, applies to any groundwater extracted after 1955.
Moreover, after 1959, failure to file a notice for any
calendar year within 6 months after the end of that calendar
year is deemed equal to nonuse of the groundwater.
The Legislature Has Created 13 Special Act Districts To Manage
Groundwater Supplies . These districts include Orange County
Water District, Santa Clara Valley Water District, Monterey
Peninsula Water Management District, and Long Valley
Groundwater Management District.
Current Law Requires DWR To Study & Report On Groundwater
Conditions . Current law only requires the Department of Water
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Resources to report its findings to the Governor and the
Legislature no later than January 1, 1980. DWR has updated
this report infrequently and only upon appropriation of funds
for that purpose.
PROPOSED LAW
This bill would establish a statewide groundwater elevation
monitoring program as follows:
Local groundwater management interests would notify DWR as to
who would conduct the monitoring of groundwater elevations,
what area they would monitor, their qualifications for
conducting the monitoring, etc.
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If more than one party seeks to become the monitoring entity
for the same portion of a basin or subbasin, DWR would consult
with the interested parties to determine who would perform the
monitoring functions. In determining which party would conduct
the monitoring, DWR would be required to adhere to the
following priority:
1. A watermaster or water management engineer who was
appointed by a court as a part of an adjudication
proceeding.
2. (a) A groundwater management agency with statutory
authority to manage groundwater pursuant to its
implementing legislation, or
(b) A water replenishment district.
3. (a) A local agency that is managing all or part of a
groundwater basin or subbasin under what is known as an AB
3030 plan (Water Code Section 10750 et seq.), or
(b) A local agency or county that is managing all or part of
a groundwater basin pursuant to any other legally
enforceable groundwater management plan with provisions
that are substantively similar to AB 3030.
4. A local agency that is managing all or part of a
groundwater basin or subbasin pursuant to an integrated
regional water management plan that includes a groundwater
management component that complies with the requirements of
SB 1938 (Water Code Section 10753.7).
5. A county that is not currently managing all or a part of
a groundwater basin.
6. A voluntary cooperative groundwater monitoring
association formed pursuant to this bill.
Monitoring entities would be required to start monitoring and
reporting groundwater elevations by January 1, 2010. The
groundwater elevation data would be made readily available to
DWR, interested parties, and the public.
By January 1, 2010, DWR would begin to identify the extent of
monitoring of groundwater elevations that is being undertaken
within each basin and subbasin. If DWR determines that no one
is monitoring all or part of a basin or subbasin, DWR would be
required to determine if there was a local party willing to
conduct the monitoring.
If (a) DWR determines there is no local interest in conducting
the monitoring, and (b) DWR determines the existing monitoring
network is insufficient to demonstrate seasonal and long term
trends in groundwater elevations, and (c) Board of Mining and
Geology concurs with that determination; then DWR would be
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authorized to monitor groundwater elevations and to assess a
fee to well owners within the DWR monitored area to recover
its direct costs.
This bill would also require DWR to update the groundwater
report by January 1, 2010, and thereafter in years ending in 5
and 0.
ARGUMENTS IN SUPPORT
The author, quoting from PPIC's report "Water for Growth:
California's New Frontier," notes that, "Groundwater is the
largest single source of new supplies projected by the [urban
water management plans], and two-thirds of the increase is
projected in areas outside fully managed basins. In some of
these areas, conflicts have already begun to emerge, as
developers plan to use groundwater to supply new housing
projects."
According to the author, "California's 'Don't ask - don't tell'
policy for groundwater is not working. While the state has over
500 distinct groundwater basins and subbasins, no one has
oversight or management responsibilities over all or even part
of any of these groundwater basins or subbasins unless a court
has ordered it, the Legislature has established a special
district to do it, or a voluntary group of groundwater users
chose to do it. For much of the state, this means that no one
is looking out for groundwater."
ARGUMENTS IN OPPOSITION
A coalition of largely agricultural interests raise a number of
concerns.
"We start from the premise that groundwater basins are local,
rather than state, resources. Significant local groundwater
management is successfully underway in California, and we
consider it incumbent on the state to identify what information
needs are not being met, and to fund the collection of
information to meet those needs out of state resources, rather
than to adopt a state requirement on local groundwater basins in
order to require local water users, and their special districts
and local governments, to shoulder the cost of meeting the
state's needs."
"Before the state imposes a new groundwater monitoring and
reporting requirement that is locally funded, it is appropriate
for the state to fully use the information at its disposal,
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identify what further information it actually needs, and what it
needs the information for, and to fully fund the proper
operation of its own existing groundwater monitoring network."
"Groundwater is not a public trust resource, under published
California case law. Santa Teresa Citizen Action Group v. City
of San Jose (2003) 114 Cal.App.4th 689, 709; see also Golden
Feather Community Association v. Thermalito Irrigation District
(1989) 209 Cal.App.3rd 1277, 1284-1285. The use of underlying
groundwater is a real property right in California. The
correlative right to use of underlying groundwater is a matter
between neighbors on the same basin, and not a matter between
landowners and the state. The groundwater basins are local
resources of various scope, some of which underlay more than one
county, and many of which are solely within individual counties.
Local districts, not the State of California, are the proper
level of government to regulate the relations between neighbors
on the same groundwater basin."
COMMENTS
4th Time A Charm? There have been three previous attempts in
recent years to establish a statewide groundwater monitoring
system. Senator Kuehl carried two bills in the 2005-6 session
that, among other things, would have established a statewide
groundwater monitoring system, SB 820 & SB 1640. Both bills
were vetoed. Last session, Senator Steinberg carried SB 178.
It too was vetoed. In his veto statement on SB 178, the
Governor wrote "I recognize that this bill is attempting to
provide new, useful information about groundwater elevation.
However, this bill places significant and enormously costly
requirements on the Department of Water Resources (Department)
to undertake a great deal of work without assuring any
guarantees of the receipt of any new information regarding
groundwater elevations within any basin in the state."
This bill is identical to the introduced version of SB 178.
Change Dates. As this bill is identical to the introduced
version of SB 178, it includes the same dates and timelines.
Should this bill move forward, the author should consider
realigning the dates.
Case Law Is Silent On Public Trust . It is often asserted that
groundwater is not a public trust resource. In general, the
public trust doctrine posits that the sovereign owns all of its
navigable waterways and the lands lying beneath them as trustee
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of a public trust for the benefit of the people. However, the
Constitution, the statutes, and case law are silent on (1)
whether or not groundwater specifically is or is not a public
trust resource, as well as (2) under what circumstances
groundwater might or might not be considered a public trust
resource. One case, Santa Teresa Citizens Action Group v. City
of San Jose, is occasionally cited as substantiating the
position that groundwater is not a public trust resource.
However, in that case, the California Court of Appeal found that
the public trust issue under consideration was not ripe for
decision. Therefore, we can conclude nothing based on this
case.
SUGGESTED AMENDMENTS: None
SUPPORT
None Received
OPPOSITION
California Bean Shipper Association
California Cattlemen's Association
California Chamber of Commerce
California Farm Bureau Federation
California Grain and Feed
California Pear Growers
California Seed Association
California Warehouse Association
California Wheat Growers Association
Pacific Egg and Poultry Association
Regional Council of Rural Counties
Western Growers
Wine Institute
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